132 Minn. 265 | Minn. | 1916
Lead Opinion
In 1869 a railroad was constructed through a forty, now owned by plaintiff, in Chisago county, this state, apparently, without taking the trouble to acquire the right so to do, for condemnation proceedings were not instituted until 1874, and not until 1885 were the damages awarded paid into court. In 1895 defendant’s predecessor, then the owner of the railroad, constructed a ditch on the westerly side of the right of way as it passes through plaintiff’s land. This ditch served to carry the water south where it found either a natural or artificial outlet. Plaintiff in 1911 acquired this forty together with the forty adjoining on the west. And, for about ten years prior thereto, he had owned and resided upon the government forty immediately west of the one last referred to. The greater part of these three forties is low. Apparently plaintiff’s land, as well as the surrounding country, consisted for the most part of low land and tamarack swamps. The railroad track was of necessity, in that vicinity, placed on a fill. The natural drainage was across the right of way towards the east or southeast. The slope was slight, but the effect of the construction of the roadway without any culverts therein was to impound the waters on the west of the right of way, except such as by slow seepage might pass through the embankment. Years ago a ditch was constructed by the railroad far to the east of its right of way, evidently to get rid of the surplus waters on that side of the track. The
Defendant insists that, since its roadbed, consisting of an embankment without culverts and without this ditch,-existed at the time the condemnation proceeding was instituted, all injuries or damages resulting from the construction were paid for in the award, citing McCarty v. St. Paul, M. & M. Ry. Co. 31 Minn. 278, 17 N. W. 616; Radke v. Minneapolis & St. Louis Ry. Co. 41 Minn. 350, 43 N. W. 6, and Evans v. Northern Pacific Ry. Co. 117 Minn. 4, 134 N. W. 294. Plaintiff concedes this would be true in case of a voluntary conveyance by the owner of a right of way, but claims that, where land is taken for railroad purposes under
But there are considerations going far to sustain plaintiff’s right to the relief awarded by the court, notwithstanding the decisions first cited. Damages awarded in condemnation proceedings do not include injuries resulting to adjacent property from improper construction or negligent maintenance of the roadbed. The theory is that a railroad will be constructed and operated in a proper manner and so as not to inflict unnecessary injury upon the inhabitants of the districts contiguous to its line. Jungblum v. Minneapolis N. U. & S. W. R. Co. 70 Minn. 153, 72 N. W. 971. Of necessity a railway roadbed cannot so conform to the contour of the territory through which it passes that it will not interfere with surface waters or the natural drainage. Where there are lowlands, the track must be upon an embankment, and where there are ridges or hills, cuts must be made. In proper railroad construction consideration must be given to adequate culverts and ditches along the track, so that no unreasonable interference with either watercourses or natural drainage of surface waters occurs. This is required in the interest of the railroad, the traveling public, and the country contiguous to the line of railway. It stands to reason that as the country develops the railroads must also keep pace. What might have been a reasonable and non-negligent construction of a railway roadbed through the' low ground and tamarack swamps of the north part of Chisago county in 1869 when large stretches were a comparative wilderness, should not now be so regarded, when the state, county and individual owner are putting forth earnest effort to
The doctrine of McCarty v. St. Paul, M. & M. Ry. Co. supra, should not be applied with rigor to this condemnation proceeding of 1874, under the facts here revealed. The land was evidently deemed so worthless that the railroad company did not take the trouble to ask leave of the owner to pass through until five years after the road was built. There is no indication that any of this land, nor of contiguous lands, was then occupied or made use of. Whether railroad embankments at that time impounded more water than would otherwise exist in a tamarack swamp was of no consequence. No owner seems to have appeared, or to have known of the condemnation, and neither did the railway company interest itself very much in finding him, for the award, whatever it was, was paid into court; and that was not done until 1885.
We also find that the railroad corporation itself recognized that the original construction and the one existing in 1874 was not what it ought to be, for in 1895 it constructed this ditch, the closing of which more than 15 years later caused the injuries complained of. It knew that its embankment across the east forty of plaintiff’s land interfered with the natural drainage to the east. It may be at first, when the embankment was neither so high nor so wide as later and, perhaps, not so firmly settled and hardened, that there was a seepage through, notwithstanding the absence of culverts. At any rate, to relieve the accumulation of waters on the west side of the embankment this ditch was dug on the west side of the right of way and the water found an outlet to the south. It became almost like a natural watercourse, and.must have connected with one, for witnesses testify to spearing fish in the ditch. In fact, it appears that defendant’s predecessor considered that reasonable care in the construction of the roadbed through plaintiff’s land required this ditch; and it should not be closed now, unless defendant by means of adequate culverts lets the water through its embankment toward the east, the direction of natural drainage.
Another consideration shows equities with plaintiff. About 1900 he purchased the west forty and began to improve the same for a home. Some of this was low land, susceptible of being utilized because this ditch, which was then in existence, carried off the waters impounded by the
As to the tract bought in 1900 by plaintiff and the government forty next east, bought some nine years later, neither of which touches defendant’s right of way, it is reasonably clear that the court was right in allowing relief and damages for impounding thereon surface water which should have been allowed to pass through defendant’s roadbed to the east. There is nothing which precludes plaintiff from insisting that defendant shall so maintain its roadbed with culverts and ditches as not to unreasonably detain upon those tracts surface water which naturally would pass by without injury, for the court’s findings are that the condemnation proceeding related to the east forty only of the land now owned by plaintiff. That finding is not challenged, although it is stated that the stipulation of facts in regard to the condemnation was broad enough for the court to have included the whole of plaintiff’s farm, the three forties. Doubtless the court’s finding reflects the true situation more accurately than the stipulation. In ridding itself of surface water or in creating a barrier by its roadbed defendant “must give reasonable regard to the rights of other landowners, using its own so as not to interfere unreasonably with the rights of others.” Skinner v. Great Northern Ry. Co. 129 Minn. 113, 151 N. W. 968. But since part of the east forty west of the right of way was lowland and some damages for its flooding were included in the amount awarded, it remains to be seem whether that may be justified. We think the observations already made concerning the
But there is another consideration supporting plaintiff’s right to be compensated for the damage to the east forty as well as to the other lands due to the closing of the ditch. The ditch was in existence for the drainage of defendant’s roadbed when chapter 377, p. 453, Laws 1909, was enacted (section 4269, G. S. 1913). This law provides: “It shall be the duty of every railroad company or receiver or lessee thereof, operating a line of railroad in the state of Minnesota, to keep clean at all times between the first day of April and the first day of November of each year, all ditches and culverts constructed by them for the drainage of their roadbed or right of way.” It seems clear that this statute was passed to protect against just such injuries to agricultural lands as was inflicted by the closing of this ditch. Its primary object was not to insure a safe roadbed, for the dates specified for keeping the ditch and culverts open indicate protection to fields and meadows. But conceding that the aim was both to secure a safe roadbed, and to protect private property against injury from water, we think the law was well within the power of the legislature to enact, and that plaintiff can invoke a remedy based thereon. It is but another mode of the same proper supervision found in the fence- and-cattle-guard law, and the law requiring railroads to keep their right of way free from combustibles. The person specially injured by a failure to comply with such statutes is entitled to redress. In Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364, 13 Sup. Ct. 870, 37 L. ed. 769, in which the constitutionality of the fence law was attacked, this observation was made: “The extent of the obligations and duties required of railway corporations or companies by their charters does not create any
Some objection is made to the evidence relating to damages, but we think no substantial error is here shown. The so-called permanent damage was the destruction of the tame grass sod and the other damage consisted of the reduced rental value of the farm during 1912,1913 and 1914, resulting from the filling of the ditch. Plaintiff undertook to prove the depreciation in rental value by showing the value of the hay stump-age, wholly lost because of the water, also the value of the pasturage lost. This we think a proper mode of arriving at the loss in rental value.^ It was, perhaps, the most practical method under the circumstances. Plaintiff claimed some inconvenience in getting to some part of his land, because the water west of the roadbed was so high that he could not drive across his own land, but had to go either north or south and pass over the land of neighbors. The court told the jury this inconvenience might be considered in fixing the damages. We have not found any testimony placing any money value upon this inconvenience. It may therefore be doubted whether it should have been mentioned; but we cannot assume that the jury could have found any appreciable sum for this inconvenience. Moreover, the court’s attention was not called to the fact that there was no testimony placing a monetary estimate on this item of injury. If the court labored under some misapprehension in regard to the testimony, counsel ought to have made some attempt to put the court right before the jury retired.
Affirmed.
Concurrence Opinion
(concurring).
In my view the rule adopted by the court in McCarty v. St. Paul, M. & M. Ry. Co. 31 Minn. 278, 17 N. W. 616, followed and applied in Evans v. Northern Pacific Ry. Co. 117 Minn. 4, 134 N. W. 294, applies whether the right of way be acquired by purchase or condemnation. In either case the damages awarded and paid are in full for all injuries suffered by the landowner in consequence of the construction of the road; particularly should the rule apply to a case where, as in the case at bar, the condemnation proceedings were conducted, damages ascertained and paid, subsequent to the actual construction of the road. The only theory, therefore, on which an affirmance may be ordered is that the statute referred to in the opinion is a valid exercise of the police power. Upon that question I am not prepared to disagree with the opinion.